Environmental Compliance and Enforcement Discretion During the COVID-19 Pandemic

CLIENT ALERT

By: Tom Burack, Lynn Preston & Robert Lucic

March 27, 2020

On March 26, 2020, the US Environmental Protection Agency (EPA) issued a temporary policy laying out how the agency will exercise its enforcement discretion in addressing environmental noncompliance matters that arise under federal environmental laws during the course of the COVID-19 pandemic. This policy, issued through EPA’s Office of Enforcement and Compliance Assurance (OECA), is in response to inquiries from states and regulated parties that are confronting the Novel Coronavirus and its potential impacts on the available workforce. Although the policy gives EPA additional enforcement flexibility during the crisis, the regulated community must continue to provide EPA with notice of problems as they arise.

This new policy applies retroactively to March 13, 2020, will remain in effect until EPA gives 7 days advance written notice of its termination and is applicable only to civil compliance matters (i.e., criminal violations and conditions of probation in criminal sentences are explicitly excluded, as are the import of products, including pesticides, or any matters involving products claiming to address COVID-19 impacts). EPA intends to issue separate policies on ongoing site investigation and cleanup obligations under enforcement instruments issued under the Superfund or RCRA Corrective Action Programs. While the policy is not legally binding on state agencies that conduct the vast majority of the enforcement of the nation’s environmental laws, it is likely to be followed by most states in most instances.

EPA specifically acknowledges that the pandemic could constrain permittees’ ability to “perform routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification.” EPA is, however, advising that when such noncompliance occurs, the permittee should promptly and voluntarily report the situation to the EPA or state regulatory authorities. EPA states that it does not expect to seek penalties for such violations, provided EPA agrees that they were due to COVID-19 and the party provides supporting documentation to EPA if requested. The policy provides that while entities should make every effort to comply with environmental obligations, where compliance is not reasonably practicable, the following steps should be taken: (i) act responsibly to minimize the effects and duration of the noncompliance, (ii) identify the specific nature and dates of the noncompliance, (iii) identify how COVID-19 caused the noncompliance, and the decisions and actions taken in response, including best efforts to comply and steps taken to come into compliance at the earliest opportunity, (iv) return to compliance as soon as possible, and (v) document all of the steps and actions taken.

With respect to compliance with existing settlement agreements or consent decrees, including reporting obligations and milestones, the policy requires the parties to utilize the existing notice provisions in those documents, and to invoke force majeure clauses where applicable. As a general matter, EPA indicates that it will not pursue penalties if the five steps to minimize the noncompliance, document cause and efforts, and return to compliance are satisfied.

The policy is emphatic that the pandemic is not an excuse for entities to intentionally operate in an unsafe manner and that, “The EPA expects all regulated entities to continue to manage and operate their facilities in a manner that is safe and that protects the public and the environment.” In any instance in which facility operations “may create an acute risk or an imminent threat to human health or the environment” due to COVID-19, EPA urges the facility to immediately contact the appropriate regulatory authority (e.g., EPA or state agency) to seek guidance in returning to compliance. Likewise, if due to COVID-19 conditions a facility’s pollution control equipment (e.g., air emission control, wastewater or water treatment) fails in a manner that may result in an exceedance of permit emission or discharge limits, the facility is also advised to immediately contact the regulatory authority and to take the 5 steps outlined above.

Facilities that generate hazardous waste and are unable to arrange for timely off-site waste disposal are instructed to continue to label and store all waste containers and to document their actions in accordance with the 5 steps, and will continue to be regulated by EPA as generators and not as treatment, storage or disposal facilities. Small quantity generators will also continue to be regulated as such even if they temporarily exceed the regulatory threshold for onsite waste storage provided they follow the 5 steps.

With respect to public water systems, EPA is less forgiving, stating that it “has heightened expectations for public water systems [during the COVID-19 pandemic],” and, accordingly “expects operators of such systems to continue normal operations and maintenance as well as required sampling to ensure the safety of our drinking water supplies.” Testing laboratories are also advised that they are “to continue to provide timely analysis of samples and results.” The policy states that, “In the event of work shortages in the water sector, the EPA will consider continued operation of drinking water systems to be the highest priority.”

Importantly, the policy also explicitly states that it should not “be read as a willingness to exercise enforcement discretion in the event of … a release of oil, hazardous substances, hazardous chemicals, hazardous waste, and other pollutants” for which reporting or response is required under federal law. In other words, just because of COVID-19, EPA isn’t going to look the other way if new pollution occurs. And that’s probably a good way to understand this temporary policy: if a facility truly can’t comply because its employees are sick due to COVID-19, they need to let the regulators know about the situation immediately and do all they can to get back into compliance as rapidly as possible. Telling the teacher “I was sick” won’t excuse a regulated entity from doing its environmental compliance homework, only for turning it in late.